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Abstract

Law is a specialized semiotic realm, but lawyers generally are ignorant of this fact. Lawyers may manage meaning, but they also are managed by meaning. Seemingly trapped by the weight of pre-existing signs, their attempts to manage these meanings generally are limited to technical interventions and instrumentalist strategies. Signs have power over lawyers because they are embedded in narratives, a semiotic economy that confronts the lawyer as “given” even though it is dynamic and constantly under construction. Most lawyers do not make meaning through legal narratives; rather, they parrot bits of the controlling narratives in response to certain problems. Because clients often can achieve their objectives when their lawyers crudely manipulate the symbols of law, these endeavors pay very well. Well-paid lawyers tend not to ask too many questions. Consequently, semiotics is, at best, misunderstood by lawyers; more likely it is wholly unknown. A lawyer’s avowed instrumentalism is the very problem to be addressed in this regard. For the scope of discussion, I refer to Vico’s famous On the Study Methods of Our Time and draw my conclusion for the lawyer of our time.

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Notes

  1. As described by Elio Ginaturco, Vico

    sets the seal of a philosophical conclusion upon the Quarrel of the Ancients and the Moderns. Vico draws, so to speak, the final balance-sheet of the great controversy; not only that, but transposes it to a ground where the problem posited can receive a solution. He is a reconciler of the two factions; he lifts their debate to a high philosophical plane, he rises to the concept of a modern culture harmonizing the scientific with the humanistic aspects of education.

    See [1, pp. xxiii–xxiv].

  2. Just prior to submitting this essay for publication, Jan Broekman helpfully pointed me to an essay by Thomas Sebeok in which he connects Vico to the modern semiotics movement. Sebeok concludes that “the Vichian project as such has not had much directly traceable effect on modern semiotic inquiry or methodology” [2, p. 137], but he suggests connections between Vico and semioticians such as Peirce, Ibid., pp. 135–136.

  3. Indeed, if a person were to try to live life by utilizing only Cartesian reasoning she would be incapable of action and most likely would be regarded as having a serious mental disturbance.

  4. See [4, pp. 125–140]. The Sixth Oration of 1707 has been titled by the translators, “On the Proper Order of Studies.”

  5. See [5, p. 611].

  6. See [6, p. 27]. Kelley concludes that the “debts owed by Vico to jurisprudence are incalculable and in some cases almost indemonstrable … for they involve matters not only of content but of form and method, not only exempla but, much more significantly, also principia of human behavior.” Ibid., p. 19.

  7. See [7, p. xiii, 82–83].

  8. In a recent Symposium that I edited, several contributors focused on the centrality of law to Vico’s thinking. See [810].

  9. See [3, p. 78].

  10. See [11, pp. 96–97]. Grassi elaborates:

    This ‘ingenious’ metaphorical and fantastic activity is not realized in the framework of rational logic but in “common sense” [sensus communis] through which we continually transform reality in the human context by means of ‘fantastic’ concepts. In such a language we never meet with abstract human beings but rather with those who, like ourselves, find themselves through work, in temporal and spatial relationships. The concepts through which we come to understand and ‘grasp’ each situation come from our ingenuous, metaphorical, fantastic capacities that convey meanings in the concrete situations with which we are confronted.

    Fantastic universals have a primacy over abstract rational ones because concrete reality is revealed through them. For instance in Cicero’s previously mentioned example the expression ‘happy sowing’ is not rational and so not ‘scientific’ in the traditional sense, but rather expresses the meaning which sowing has for human beings, a relationship (happy) which the supposedly ‘true’ rational expression never would reveal. The same holds for the other example from Cicero, ‘when the shot escapes the hand.’ It aims at showing and revealing that which is really experienced and hence the concrete time in which human beings find things to receive a new meaning through work.

    The conformity of reality to human needs comes about through human work, and this occurs through the conveyance of meaning in which fundamental metaphors reveal concrete reality, not in the frame of universal, abstract, rational language.

    Ibid., p. 100.

  11. Grassi notes that the original meaning of “metaphor” was to physically carry an item from one place to another, but that gradually it came to be used “metaphorically” as a transfer of meaning that Aristotle recognized as being foundational to education because it generated knowledge not through a chain of deductions that might fail but rather through immediate insight (Ibid., pp. 94–95).

  12. Michael Mooney makes this point vividly:

    Ingenuity, Vico says repeatedly, is the “faculty of bringing together things that are disparate and widely separated.” It lays no claim to thoroughness or method, but is a capacity, as Petrarch had said of it, which is quick and decisive, penetrating and acute, ready and adaptive. One does not need to call on ingenuity; one either has it or does not, sees connections or misses them utterly. Vico was a child of acute ingenuity, he claimed, and so, too, are children generally, if only we will recognize it and train them accordingly. For ingenuity depends on the images of fantasy, a faculty most vivid and robust in youth, and on the power of memory, fantasy’s twin, and they in turn take their start in sensations, the images of sense. But the point is more subtle than it seems, for sense and memory are not to be thought of as mere passive capacities, receiving and retaining impressions that imagination and ingenuity subsequently work through; sense, memory, imagination, and ingenuity are four virtually indistinguishable aspects of the single, prediscursive action of the mind.

    Ingenious perception is truly an invention, an assembling and arranging of images that produces a genuinely novel vision. … [In] oratory and law, it is a vision of how things should be, a course of action that will set things right or avoid their deterioration, a vision that joins past to future through current expectations, thus achieving plausibility, but one that does so through images that are familiar and foreign alike, thus opening to us new ways. Such images are those of metaphor, language that is sententious and acute.

    See [7, pp. 151, 153].

  13. I concur with Mark Lilla that the New Science can be read as continuous with Vico’s earlier oration.

    If civilized Athens and mighty Rome were both undone by the “barbarism of reflection,” is there any hope of nations today escaping their fate? … In his pre-scientific works Vico’s practical political teaching is clear enough: preserve the traditions and religious customs by which divine providence directs you to the verum, forswearing the enticements of modern enlightenment, and you shall be like Rome. But those earlier works treat only of Rome’s exemplary rise, ignoring her fall.

    By studying the collapse of Rome at the end of her historical corso he now hopes to unmask the forces that robbed her of those traditional strengths. Those lessons could then be applied to European societies through the ricorso, which puts Europe in Rome’s place and reveals which of its “Roman” traditions must be defended against the new barbarization.

    On this reading, the corso-ricorso doctrine is not a scientific doctrine. It is a prophecy, a dramatic warning to modern Europe that she stands at the edge of an abyss. No reader has come away from the final packed pages of the New Science without sensing their prophetic rhetorical power. Just as in On Method, where he once called modern Europeans to revive ancient education, Vico again seems to be calling Europe away from its modernity.

    His practical teaching is therefore relatively clear: societies wishing to maintain their perfection must learn to strengthen all that is Roman within themselves, and direct all that is Greek within them to serve these Roman virtues. Philosophy can retain a role in maintaining this equilibrium, though only as the handmaiden of science and religion. Philosophy must now choose to assist “common sense” rather than weaken it through skepticism.

    See [14, pp. 217, 225–227].

References

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Acknowledgments

I am very grateful to Jan Broekman for inviting me to his seminar, from which I learned a great deal, and for being such a generous cicerone. I also thank Bill Pencak for his active and illuminating participation in the seminar. Both Professor Broekman and Professor Pencak made very helpful suggestions for revising this paper, but I remain responsible for the inadequacies that remain. This paper draws heavily from a longer work. See [15].

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Mootz, F.J. Vico and Imagination: An Ingenious Approach to Educating Lawyers with Semiotic Sensibility. Int J Semiot Law 22, 11–22 (2009). https://doi.org/10.1007/s11196-008-9092-2

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